2. In 2010, Barrett strongly indicated that she rejects the Charming Betsy canon, that is, "the rule that where one
interpretation of a statute would compromise the international obligations of the United States, the court should adopt any other plausible interpretation."
3. Why? Because compliance with international law is a policy value, rather than a constitutional value. And policy questions are for the legislature (and presumably the executive), not for the judiciary.
4. Judges should serve as faithful agents of the legislature (or, in her later work, the people), not protectors of international law.
5. Barrett notes that some scholars defend the Charming Betsy canon as reflecting a constitutional value. But the constitutional value is precisely the authority of the other branches to choose to violate international law.
6. At most, if a statute can be read in two ways, with roughly equal plausibility, judges are permitted to adopt the interpretation that respects international law.
1. Interestingly, Barrett probably agrees. In 2010, Barrett accepted that statutory textualism was not dictated by original meaning/understanding or historical practice.
2. At that time, Barrett argued that courts are "faithful agents" of the legislature, and textualism best preserves legislative compromises. Later, her view changed.
3. In 2017, Barrett argued that courts are faithful agents of the people, and that fairness to the people requires interpreting statutes according to their public meaning.
Yes, Barrett thinks most super-precedents will never come to the Court. Paper money is safe, etc.
But, Barrett shares "the [originalist] commitment to treat the constitutional text as controlling when the question is called." scholarship.law.upenn.edu/cgi/viewconten…
2. Yes, Barrett thinks overruling precedent requires “both reason giving on the merits and an explanation of why its view is so compelling as to warrant reversal.”
But, its view only needs to be compelling to fellow originalists ("methodological friends" in the literature).
3. Finally, I haven't seen Barrett endorse a particular standard for reversal, like "demonstrably erroneous." My sense from her later writings is that the most plausible reading controls. But this is an inference from her view that original meaning *is* the law.
1. The Kentucky AG says: "According to Kentucky law, the use of force by Mattingly and Cosgrove was justified to protect themselves. This justification bars us from pursuing criminal charges in Miss Breonna Taylor's death."
2. Under the Kentucky Penal Code (503.120), self-defense is unavailable as a justification in a prosecution for an offense involving wantonness or recklessness toward innocent persons.
3. Even if Mattingly and Cosgrove were justified in defending themselves against Walker, they may have wantonly or recklessly injured or risked injury to Taylor.
Self-defense does not preclude charging them accordingly.
Good piece. FWIW, many take the view that "principles of international law derived from ... the principles of humanity and from the dictates of public conscience" refers to general principles of law, rather than to customary international law. 1/
From the ILC SR's Second Report (which is absolutely fascinating and deserves much more attention than it's received): documents-dds-ny.un.org/doc/UNDOC/GEN/… 2/